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Mueller Constitutional Challenge - Miller Motion To Stay Mandate 5-6-19
Mueller Constitutional Challenge - Miller Motion To Stay Mandate 5-6-19
Pursuant to Fed. R. App. P. 41(d)(1) and D.C. Cir. Rule 41(a)(2), Appellant
Andrew Miller hereby moves this Court to stay issuance of the mandate for 30
days pending the filing of a petition for a writ of certiorari to the Supreme Court,
1. On February 26, 2019, this Court issued its opinion and judgment in this
case affirming the district court’s order of August 10, 2018, holding Mr. Miller in
civil contempt for refusing to comply with a subpoena issued by Special Counsel
Robert S. Mueller, III, to testify before the so-called Mueller Grand Jury on June
29, 2018. In re: Grand Jury Investigation, 916 F.3d 1047 (D.C. Cir. 2019).
2. The Court ordered the Clerk to “withhold issuance of the mandate herein
until seven days after the disposition of any timely petition for rehearing or petition
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for rehearing en banc.” The Court’s order further provided that, “This instruction
to the Clerk is without prejudice to the right of any party to move for expedited
issuance of the mandate for good cause shown.” (Order, Feb. 26, 2019).
3. During the 45-day period following this Court’s decision and order, the
government failed to exercise its right to move for expedited issuance of the
mandate, presumably because it could not show the requisite good cause.1
4. On April 12, 2019, Miller filed a timely Petition for Panel Rehearing and
Rehearing En Banc with Suggestion of Mootness, which was denied on April 29,
2019.
supra, and Fed. R. App. P. 41(b) and D.C. Cir. Rule 41(a)(1), the mandate is to be
withheld for seven days from the denial of any timely petition for rehearing, which,
in this case, is May 6, 2019, unless a motion to stay the mandate is filed on or
before the seventh day after the denial of the rehearing petition. The instant
motion to stay the mandate pending the filing of a petition for writ of certiorari is
1
According to Justice Department spokesperson Kerri Kupec, “The investigation is
complete.” Devlin Barrett and Matt Zapotosky,“Mueller report sent to attorney
general, signaling his Russia investigation has ended” Washington Post (Mar. 22,
2019).
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Under Fed. R. App. P. 41(d)(1), a motion to stay the mandate pending the
filing of a petition for writ of certiorari in the Supreme Court “must show that the
petition would present a substantial question and that there is good cause of a
stay.” D.C. Cir. Rule 41(a)(2) provides that a stay of the mandate “will not be
granted unless the motion sets forth facts showing good cause for the relief
sought.” While the Circuit Rule requires only that “good cause” be shown,
whereas FRAP 41(d)(1) requires the showing of both “good cause” and that the
petition “would present a substantial question,” Appellant submits that his motion
"substantial question," this Court considers whether the petition "tenders [issues
that] are substantial." Deering Milliken, Inc. v. FTC, 647 F.2d 1124, 1128 (D.C.
Cir. 1978). Appellant intends to tender the following questions in his petition:
appointed because he is a “principal officer” and thus was required to be—but was
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not—appointed by the President with the Advice and Consent of the Senate under
but was not— appointed by then-Attorney General Jeff Sessions, the “Head of
There can be no doubt that the questions Appellant wishes to present to the
Supreme Court in his petition are not only “substantial” but ones of exceptional
safeguards of the constitutional scheme.” Edmond v. United States, 520 U.S. 651,
659 (1997). 2
4. With respect to the underlying statutory question, the panel held that the
issue of whether 28 U.S.C. 515 and 533(1) authorized the appointment of a Special
Counsel was decided by the Supreme Court in United States v. Nixon, 418 U.S.
683 (1974) and this Court’s decision in In re Sealed Case, 829 F.2d 50 (D.C. Cir.
1987). 916 F.3d at 1053. It did so without applying any of the well-settled rules of
2
See generally Steven G. Calabresi & Gary Lawson, “Why Robert Mueller’s
Appointment As Special Counsel Was Unlawful,” Northwestern Public Law
Research Paper No. 19-01 (last update Mar. 9, 2019) (forthcoming Notre Dame
Law Rev.) https://papers.ssrn.com/sol3/papers.cfm?abstract_id=3324631.
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statutory construction employed by the Supreme Court and this Court. The panel
cited to just one sentence in Nixon that Congress vested in the Attorney General
“the power to appoint subordinate officers to assist him in the discharge of his
duties. 28 U.S.C. 509, 510, 515, 533.” Id. As amply demonstrated in our briefs,
and which was undisputed, that fundamental statutory issue was neither briefed nor
argued by the parties before the Court but instead was assumed. Given the
Supreme Court’s jurisprudence over the last 45 years since Nixon that Congress
use clear statutory language when altering the structural safeguards of the
constitution, see e.g., Gregory v. Ashcroft, 501 U.S. 45 (1991), the Supreme Court
will likely grant review to revisit its unexamined dictum, disguised as a holding by
5. As for whether the Special Counsel, who has more power than U.S.
Attorneys who have been appointed since 1789 by the President and confirmed by
the Senate since 1789, should also be similarly appointed, the panel summarily
inferior officer under the Appointments Clause.” Id. at 1052. The “binding
precedent” cited by the panel was Edmond v. United States, 520 U.S. 651, 663
(1997), for the proposition that any officer supervised by a superior officer
inferior officer. In doing so, the panel misapplied the three factors that need to be
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Justice Souter recognized in Edmond, “[i]t does not follow, however, that if one is
superior officer is necessary for inferior officer status, but not sufficient to
establish it.” Id. at 667 (Souter, J., concurring in part and concurring in the
judgment) (emphasis added). If that were the case, then every subcabinet officer is
an inferior officer. Here, too, the Supreme Court would likely grant review and
Olson, 487 U.S. 654 (1988), id., that the special counsel there was an inferior
officer. But the source of powers of the special counsel in Morrison was based on
clear statutory language in the Ethics in Government Act, and whose limited
powers were miniscule and narrow in scope compared to Herculean and wide-
3
See Brett M. Kavanaugh, Symposium: The Independent Counsel Act: From
Watergate to Whitewater and Beyond, 86 Geo. L. J. 2133, 2147 (July 1988) (“a
special counsel [should] be appointed in the manner constitutionally mandated for
high-level executive branch officials: appointment by the President and
confirmation by the Senate”) (emphasis added).
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should have been appointed by then-Attorney General Jeff Sessions, the Head of
Attorney General Rod Rosenstein, is a substantial question that the Supreme Court
will likely review in light of its recent jurisprudence that has demonstrated the
Court’s deep and profound concern that the appointment of inferior officers
faithfully hew to the requirements of the Appointments Clause. See, e.g., Lucia v.
If this Court finds that the petition for writ of certiorari presents at least one
[the Court] must conclude that there exists good cause to justify staying the
there are other “facts showing good cause” for granting a stay of the mandate.
D.C. Cir. Rule 41(b)(2). Specifically, Miller submits that both the equities of the
parties and interests of the public are additional “facts” that favor granting the stay
of the mandate.4
4
Indeed, “even [if the motion to stay the mandate] presents a weak case for a grant
of certiorari, the equities of the situation counsel that the parties… [be] afforded an
opportunity to present its contentions to the Justices of the Supreme Court of the
United States.” Books v. City of Elkhart, 239 F.3d 826, 829 (7th Cir. 2001).
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1. If the stay of the mandate is not granted, Mr. Miller will be required to
testify before the grand jury or be incarcerated while the petition is pending before
the Supreme Court. The practical effect of this Hobson’s choice – on the one hand,
travel from St. Louis, MO to Washington, D.C., to testify before the grand jury,
support his young family, and exposing himself to legal jeopardy and further
litigation if any privilege is invoked; and, on the other hand, being incarcerated
while his petition is pending – will effectively moot any petition for review in the
Supreme Court. This showing of some harm to Mr. Miller constitutes “irreparable
2. Under D.C. Cir. Rule 41(b)(2), the stay of the mandate, if granted, would
“ordinarily not extend beyond the 90 days from the date that the mandate otherwise
would have issued.” While Supreme Court rules of procedure allow a party 90
days within which to file a petition for writ of certiorari from the denial of a
petition for rehearing, Sup. Ct. R. 13.1, Miller requests a stay of the mandate for
only 30 days, or one-third of that allotted time, to obviate any objection by the
This modest incremental delay will not prejudice the government considering the
fact that the government did not seek to expedite this appeal from the time it was
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filed on August 14, 2018, nor sought to expedite the issuance of the mandate after
Miller, a former aide to Mr. Stone during the 2016 Republican National
Julian Assange, Guccifer 2.0, and Russia. After Mr. Miller voluntarily submitted
to a two-hour by FBI agents in St. Louis in May 2018, stating that he has no such
knowledge and subsequently providing all documents that relate to those subjects,
the Special Counsel indicted Roger Stone on January 24, 2019, charging him, inter
alia, with providing false statements to Congress with respect to his contacts to
Julian Assange and WikiLeaks and the hacking of Hillary Clinton and DNC
emails. United States v. Roger J. Stone, Jr., Crim. No. 19-CR-00018 (AGB)
(D.D.C.). In short, either the government apparently has no genuine need for Mr.
Miller’s grand jury testimony or it will be not be prejudiced during a short stay of
the mandate. Mr. Stone’s trial is currently scheduled for November 5, 2019.
jury at this stage of the proceedings would violate Justice Department policy and
relevant case law regarding the proper use of the grand jury:
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The grand jury's power, although expansive, is limited by its function toward
possible return of an indictment. Costello v. United States, 350 U.S. 359,
362 (1956). Accordingly, the grand jury cannot be used solely to obtain
additional evidence against a defendant who has already been
indicted. United States v. Woods, 544 F.2d 242, 250 (6th Cir. 1976), cert.
denied sub nom., Hurt v. United States, 429 U.S. 1062 (1977). Nor can the
grand jury be used solely for pre-trial discovery or trial preparation. United
States v. Star, 470 F.2d 1214 (9th Cir. 1972). After indictment, the grand
jury may be used if its investigation is related to a superseding indictment of
additional defendants or additional crimes by an indicted defendant. In re
Grand Jury Subpoena Duces Tecum, Dated January 2, 1985, 767 F.2d 26,
29-30 (2d Cir. 1985); In re Grand Jury Proceedings, 586 F.2d 724 (9th Cir.
1978).
Accordingly, the proposed misuse of the grand jury to take Mr. Miller’s
would be presented in a petition for writ of certiorari would also serve the public
interest beyond the instant case, by definitively determining one way or another
whether the appointment of Special Counsel Mueller -- and any future Special
Counsels appointed under the current statutory scheme -- was lawfully authorized
*****
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CONCLUSION
For the foregoing reasons, Appellant requests that this Court issue an order
staying the mandate in this appeal for 30 days pending the filing of a petition for
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Pursuant to FRAP 25(d), the undersigned hereby certifies that on the 6th day
Stay The Issuance of the Mandate to be filed electronically with the Clerk of the
Court by using CM/ECF system. The participants in this case are registered
CM/ECF users and service will be accomplished by the appellate CM/ECF system.
The undersigned further certifies that the foregoing Motion complies with
2010 and complies with FRAP 32(a) (5)-(6) because it has been prepared with
proportionally spaced font typeface using Microsoft Word 2010 in 14-point Times
New Roman.
/s/Paul D. Kamenar
Paul D. Kamenar
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